Lemon Test

Author:John G. West

Page 1602

The Lemon test is the three-part formula used by the Supreme Court to decide whether or not a government action violates the ESTABLISHMENT CLAUSE. The first part requires that the government action have a secular purpose; the second part demands that the action neither advance nor inhibit religion as its primary effect; and the final part dictates that the act not cause an excessive entanglement between church and state. The test was first announced in LEMON V. KURTZMAN (1971), though its major components date back, at least, to the majority opinion in ABINGTON TOWNSHIP SCHOOL DISTRICT V. SCHEMPP (1963).

The test's first prong remained noncontroversial throughout most of the 1970s, with the Court invariably finding a secular purpose for statutes under review. Then came the Court's decision in Stone v. Graham (1979), which struck down a Kentucky law requiring the posting of the Ten Commandments in public classrooms. Kentucky claimed that the purpose of the posting was to inform students of the influence of the Ten Commandments on secular history?and, in fact, the Commandments were to be accompanied by a message pointing out their influence on the development of Western law. But the Court found this "avowed" secular purpose insufficient and claimed that the state's actual purpose was to promote religion. This distinction between "actual" and "avowed" secular purposes was adopted by Justice SANDRA DAY O'CONNOR in her restatement of the Lemon test in LYNCH V. DONNELLY (1984), and the distinction became increasingly important thereafter. In WALLACE V. JAFFREE (1984) the Court struck down a law providing for a schoolroom moment of silence because the legislators' actual motive was to promote religion; and in Edwards v. Aguillard (1987) the Court invalidated for the same reason Louisiana's Balanced Treatment Act, which claimed to promote ACADEMIC FREEDOM in the discussion of CREATIONISM.

The actual-purpose approach has drawn serious criticism; the most sustained critique of the approach was delivered by Justice ANTONIN SCALIA in his dissent in Aguillard. If religious motivation by itself invalidates a piece of legislation, wrote Scalia, then a great deal of legislation indeed may have to be invalidated: "Today's religious activism may give us the Balanced Treatment Act, but yesterday's resulted in the abolition of slavery, and tomorrow's may bring relief for famine victims." Moreover, if the Court really wants to...

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